Amicus letter in Padilla v. Lever

Today I am asking the Ninth Circuit for permission to file this letter urging rehearing or rehearing en banc in the Padilla v. Lever case. Here is an excerpt from the letter:

Soon after the court's ruling, I wrote an oped in the Los Angeles Times about the case arguing that "[a] little noticed ruling from the U.S. 9th Circuit Court of Appeals last month threatens to throw a monkey wrench into California's initiative process, and it has already been used by City Council members in Rosemead to block a recall election." Richard L. Hasen, Putting a Chill on the Initiative Process, L.A. TIMES, Dec. 12, 2005, available at: http://www.latimes.com/
news/printedition/opinion/laoehasen12dec12,1,3889903.story.

Unfortunately, my prediction has come true. Indeed, applying the logic of Padilla (which itself involved only recall petitions), federal district judges have kept recall and initiative measures off the ballots in at least three California jurisdictions: Loma Linda (see Steven Wall, Judge Rules Loma Linda Petitions Invalid, REDLANDS DAILY
FACTS, Mar. 28, 2006, http://www.redlandsdailyfacts.com/news/ci_3647820); Monterey (In re Monterey Initiative Matter2 (district court opinion posted at http://electionlawblog.org/archives/monterey.pdf); and Rosemead (See Judge Puts Freeze on Recall Election, PASADENA STAR-NEWS, Jan. 18, 2006).

More lawsuits are on the way. See, e.g., Gretchen Wenner, Sludge Initiative on Hold, BAKERSFIELD CALIFORNIAN, Apr. 5, 2006, available at: http://www.bakersfield.com/102/story/44620.html?.

Most disturbing are allegations that some legislative bodies have decided to keep measures off the ballot not out of any concern with the voting rights of protected minority groups, but because they oppose the measures politically.

The concern on the local level, however, may soon spill over into California's June primary election and upcoming November general election. One statewide initiative will appear on the June statewide ballot (see http://www.ss.ca.gov/elections/elections_j.htm#2006Primary), and a number are in various stages of the qualifying process for the November election (see http://ss.ca.gov/elections/elections_j.htm#circulating). It seems just a matter of time before someone begins challenging one or more of these 50+ measures in circulation as violations of section 203 of the Voting Rights Act, because, consistent with California law, these petitions have been (or are being or are about to be) circulated only in English.

Meanwhile, those who circulate initiative and recall petitions, and the election officials who are supposed to advise them, are unsure how to act. See Mark Garcia, Petitions May Need Spanish Translation, ORANGE COUNTY REGISTER, Apr. 3, 2006, available at:
http://www.ocregister.com/ocregister/homepage/abox/article_1086187.php ("SAN JUAN CAPISTRANO-- City officials are trying to determine whether a petition challenging a San Juan Hills Golf Course housing proposal for older adults and an amendment to the general plan was done correctly. [P] The city was alerted today by the
Orange County Registrar of Voters Office because the petition was not translated into Spanish, Assistant City Manager Bill Huber said. He said he wasn't sure whether the petition needs to be written in a second language.").

Regardless of how this court ultimately resolves the application of section 203 to recall and initiative petitions, the court should grant rehearing to insure that its ruling applies prospectively only. There are strong reliance interests at stake for those who have participated in the initiative and recall processes: think of the many signature gatherers and proponents who have invested and are investing substantial time and money to qualify these measures. But beyond that, even recall and initiative proponents who would wish to comply with section 203 as construed by the Padilla majority cannot do so under existing state law. (See footnote 1, supra.) If section 203 ultimately is going to apply to recall and initiative petitions, this court should give time for California authorities to rewrite their laws so as to accommodate multi-lingual petition requirements....

Finally, applying section 203 prospectively will not infringe on the voting rights of groups protected by section 203. As I noted in my Los Angeles Times oped, "The petitions serve merely to qualify initiative or recall questions for the ballot. Once those measures are on the ballot, then all voters in the jurisdiction get to vote and are entitled to relevant ballot materials in all languages required by the Voting Rights Act."

Posted by Rick Hasen at April 7, 2006 02:09 PM